State Of Mah. Thr. Dy. S.P. Shri ... vs Haribhau S/O Laxmanrao Harne
2017 Latest Caselaw 2562 Bom

                                            1                        Cri Appeal 402-12.doc


            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   NAGPUR BENCH : NAGPUR

                         CRIMINAL APPEAL NO.402 of 2012

APPELLANT:-                             State of Maharashtra
                                        through Dy. S.P., Shri Mahale,
                                        A.C.B. Office, Wardha.

                                        VERSUS

RESPONDENT:-                            Haribhau S/o Laxmanrao Harne,
                                        Aged about 50 years, R/o. Shrinagar
                                        Layout, Bachhor Road, Wardha,
                                        Dist. Wardha.



Smt.N.P. Mehta, APP for State.
Shri M.B. Naidu for Respondent.
_____________________________________________________________________________________

                                                     CORAM : S. B. SHUKRE, J.

                                                     DATE      : 17.05.2017.
Oral Judgment-

1. This is an appeal preferred against the judgment and order

dated 6th February, 2012 delivered by the learned Ad-hoc Additional

Sessions Judge-1, Wardha in Special Case No. 9/2003 thereby

acquitting the respondent of the offences punishable under Sections 7

and 13(2) of the Prevention of Corruption Act, 1988.

2. The respondent was prosecuted on the allegations that when

he was working as a Clerk in PWD Office, Wardha, he demanded

amount of Rs. 200/- as bribe from the complainant Ganesh Rathod, a

Civil Engineer, for paying the amount of Rs. 44,600/- which was due

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and payable to the complainant as a second installment of the civil

work already completed by him on the contract awarded to him by

PWD, Wardha. The bill was already sanctioned by the Deputy Engineer

Mr. Bajaj but, its payment was allegedly withheld by the respondent

awaiting satisfaction of his illegal demand for payment of Rs. 200/- to

him by the complainant. The complainant prior to 1 st January 2003

when initially illegal demand was made, had paid Rs. 50/- and what

had remained to be paid was only amount of Rs. 150/-. However,

instead of fulfilling said illegal demand of the respondent, the

complainant decided to file complaint against the respondent and,

therefore, approached Anti Corruption Bureau Office, Wardha and

lodged a report against the respondent. After completing necessary

formalities, a trap was laid for trapping respondent red handed while

tendering the bribe. On 1st January, 2003, the trap was set. It was

successful as tainted currency notes of Rs. 150/- were handed over to

the respondent which were accepted by him and kept in his shirt

pocket. Thereafter, a signal was given to the members of the raiding

party who arrived at the spot and caught red handed the respondent.

Those tainted currency notes were recovered from him. Statements of

witnesses were recorded and the charge-sheet was filed against the

respondent after obtaining sanction for prosecution. He was prosecuted

for the offence punishable under Sections 7 and 13(2) of the

Prevention of Corruption Act, 1988.

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3. On merits, the learned Special Court found that defence of

the respondent that he did not accept the currency notes but had put

them in his shirt pocket after noticing that those currency notes were

placed on the table by somebody and its inquiry about their ownership

did not bring any fruitful result was probablised and therefore,

acquitted the respondent by giving him benefit of doubt.

4. Learned APP submits that there has been an acceptance of

tainted currency notes by the respondent and therefore, the burden

has shifted upon the respondent to prove that such acceptance was

not for satisfying any illegal demand of money for doing some official

work which has not been duly discharged by him. He submits that PW-

4, Ganesh Rathod has stated about prior demand as well as the

demand made by the respondent on the trap day and his evidence was

duly corroborated with the report lodged by him and therefore, only

because the first panch witness i.e. PW-1 gave some admission in his

cross-examination, it would not render the evidence of PW-1 as of

doubtful nature. He submits that the theory that one Wasudeo Thool, a

Clerk was working in the same Department as with the complainant

and that he too saw the incident but in a different way, cannot be

accepted for the reason that this witness was not present in the office

at the time of incident and had he been present there, he would have

immediately come forward in support of the respondent. But, the fact

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that he did not immediately come forward in support of the

respondent itself would show that this theory of Wasudeo Thool is only

a figment of imagination. Therefore, according to the learned APP, the

judgment and order impugned in this appeal are perverse and deserve

to be quashed and set aside and the respondent deserves to be found

guilty of the offences with which he was charged in the instant case.

5. Shri Naidu, learned counsel for the respondent submits that

this is a case wherein neither prior demand has been proved nor

pendency of any work with the respondent has been proved. He

submits that admittedly complainant's bill for payment of Rs. 44,600/-

was already cleared by Mr. Bajaj, Deputy Engineer, PWD, Wardha and

nothing had remained pending with the PWD, Office, on the day when

deamand was allegedly made. He further submits that even the

complainant admits that several other clerks were occupying their

tables at the time of the trap and therefore, the other witnesses who

were available and whose statements were recorded should have been

examined by the prosecution. He further submits that the prosecution

suppressed their evidence from the Court. He also submits that PW-2,

Rajesh Laddha, Superintendent Engineer and the Authority competent

to give sanction, has admitted that there were other clerks like Raju

Wankhede, Wasudeo Thool and Namdeo Shivshankar whose

statements were recorded by the Investigating Officer and who had

categorically stated before the Investigating Officer that the

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respondent never demanded bribe amount from the complainant and

that the complainant also did not give any bribe amount to the

respondent. Thus, he submits that no interference with the impugned

judgment is warranted.

6. I have carefully gone through the record of the case

including the impugned judgment. It is seen from the finding recorded

by the learned Special Court that there are several deficiencies in the

prosecution case which have gone unexplained giving rise to doubt

against the prosecution case, the benefit of of which has been given to

the respondent and in my view rightly so.

7. It was a defence taken by the respondent that he had never

made any demand of bribe from the respondent and that there was no

reason for the respondent to make such a demand as admittedly, there

was no work officially pending with him at the relevant time. It was

specific case of the respondent that on the day of trap, the

complainant had met him and inquired with him about the payment of

the bill and on this the respondent asked him that he should go and

meet to the accountant and thereafter, the respondent left his table

and when the respondent returned to the table about 10 to 15 minutes

thereafter, he discovered currency notes as lying below one office file

on the table. According to the respondent, he picked up those

currency notes by his hands, made inquiry about their ownership but,

6 Cri Appeal 402-12.doc

nobody responded in any way to his query and therefore, thinking that

the inquiry would have to be made somewhere else, the respondent

placed those currency notes in his shirt pocket at which point of time,

the members of the raiding party arrived near his table and prepared a

case against him for the demand and acceptance of the bribe.

8. As regards the defence of the respondent that nothing was

pending with him, in so far as the payment of bill of Rs. 45,600/- to the

respondent was concerned, I find that it is proved by evidence

available on record. The complainant, PW-4 has admitted that he had

met Mr. Bajaj, Deputy Engineer and inquired him about pendency of his

bill when he was told by Mr. Bajaj that it was already passed. His

evidence further shows that at that point, he goes on to construct a

new story by saying that Mr. Bajaj told him to meet one Siddhiki and

upon meeting Siddiki, he was told by Siddiki to meet the respondent in

order to receive payment of his pending bill. However, the story of the

PW-4 that he was directed by Mr. Bajaj to meet one Siddiki who further

directed him to contact one Harne i.e. respondent is an improvement.

It has not been mentioned in the statement of the complainant

recorded by the Investigating Officer. No reasons are assigned by PW-4

about absence of the same in his statement. These facts when

considered together raise questions as to why the respondent should

make a demand of bribe for paying the bill when it was already

sanctioned, and if it was really made, why the complainant did not

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again approach Siddiki or Bajaj get ride of hurdle of the respondent.

Therefore, doubt arises about the credibility of the version regarding

prior demand made by the respondent. On this point the learned

Special Judge, has also expressed doubt about this version and rightly

so.

9. There is an important witness of the prosecution, PW-2

Rajesh Laddha, Superintendent Engineer and the Competent Authority

for according sanction, whose testimony before the Court also creates

a doubt about the prosecution story against the respondent. In his

cross -examination, he has admitted that before giving sanction, he

had perused statements of all the witnesses and some of the witnesses

Raju Wankhede, Wasudeo Thool and Namdeo Shivankar, Clerks,

working at the same office as the complainant and had found from

them that the respondent did not demand any bribe amount from the

complainant, nor the complainant did give any bribe to the respondent,

nor the respondent accepted any such amount from the complainant.

The learned Special Judge has found that the statements of these

persons were recorded by the Investigating Officer, that they were

available in case papers as well, but these persons were not examined

by the prosecution. The learned Special Judge therefore, concluded

that the Investigating Officer suppressed from the Court important

facts thereby creating a deeper doubt about the prosecution story. I do

not think that this conclusion could be considered as perverse or

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representing an impossible view.

10. Against the backdrop of the aforesaid doubts, the learned

Ad-hoc Additional Sessions Judge, considered the evidence of defence

of DW-1 Wasudeo Thool, another clerk who was incidentally present at

the spot of incident at the relevant time on 01.01.2003. His deposition

reveals that respondent did not demand any bribe from the

complainant and was surprised when he found some currency notes

lying under some files on his table. He states that the respondent had

also inquired about the person to whom those currency belonged and

as nobody responded to him, he placed those currency notes in his

shirt pocket. His evidence would have to be accepted as reliable for

the reason that this witness is not coming forward with any new case

and his statement was recorded by the Investigating Officer at the

earliest available opportunity. No material contradiction or omission

amounting to contradiction has appeared in his evidence. His

statement supporting the respondent whole heartedly was also

considered by PW-2, the sanctioning authority, but was not accepted

by the sanctioning authority for refusing to accord sanction. That was

a different matter. But, the fact remains that his statement was

considered by the sanctioning authority and therefore, it was

necessary for the Investigating Officer to have placed before the Court

all the facts as they were whether they favoured or dis-favoured the

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prosecution. That was not done by the Investigating Officer,

unfortunately. So the reasonable conclusion can be drawn from the

evidence of Wasudeo Thool and other facts and circumstances of this

case discussed earlier that the burden which fell on the shoulder of the

respondent after the tainted currency was recovered from his person

about his accepting those currency notes as bribe for performing

official work, has been duly discharged by the respondent. The learned

Special Judge, has rightly observed so and has rightly acquitted the

respondent from the offences with which he was charged.

11. In the result, I find that there is no scope for making any

interference with the impugned judgment. The appeal deserves to be

dismissed. The appeal stands dismissed.

JUDGE

Gohane